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Dycus v. State

Court of Appeals of Indiana

December 29, 2017

Monica Dycus, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

         Appeal from the Marion Superior Court The Honorable David J. Certo, Judge, The Honorable David Hooper, Magistrate Trial Court Cause No. 49G12-1601-CM-1053

          Attorney for Appellant Ruth Ann Johnson Indianapolis, Indiana Rory Gallagher Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

          RILEY, JUDGE.


         [¶1] Appellant-Defendant, Monica Dycus (Dycus), appeals her conviction for operating a vehicle while intoxicated endangering a person, a Class A misdemeanor, Ind. Code § 9-30-5-2(a).

         [¶2] We reverse and remand for a new trial.


         [¶3] Dycus presents this court with two issues on appeal, which we restate as:

(1)Whether the trial court abused its discretion by admitting chain of custody forms from the Indiana State Department of Toxicology in violation of her Right to Confrontation under the United States Constitution; and
(2)Whether a person in custody must be advised of the right to counsel before being able to validly consent to a drug recognition exam.


         [¶4] On January 8, 2016, El-Hadj Barry (Barry) noticed his ex-girlfriend, Dycus, following him when he was on his way to pick up a female friend from school. Barry pulled over and told Dycus to stop tailing him. Dycus did not respond and continued to follow Barry to the school. After picking up his friend, Barry decided to drive around for a while in an attempt to lose Dycus. However, Dycus "was shouting" at Barry "every time [he] came to a stop. She was tailgating." (Transcript p. 87). Barry observed Dycus swerving and if he "accidentally would have made a quick stop, she would have hit [his] car." (Tr. p. 87). Barry's friend called 911.

         [¶5] Indianapolis Metropolitan Police Department Officer Christopher Cooper (Officer Cooper) was dispatched to the area near 16th Street and Lafayette Road in response to the 911 call. When Officer Cooper arrived at the intersection, Barry and Dycus were stopped at a red light. Dycus' "driver's door was opened. [Dycus] ha[d] one foot on the pavement. The other foot was on the brake. And, she was leaning out of the car window yelling at the vehicle in front of her." (Tr. p. 103). Officer Cooper activated his emergency lights. Approaching Dycus' car, he requested her identification and instructed her to remain in the vehicle. After speaking with Barry and checking his information, Officer Cooper informed him that he was free to leave.

         [¶6] Officer Cooper continued to detain Dycus because he believed she was driving on a suspended license. While speaking with her, the officer noticed the "odor of marijuana coming from her breath." (Tr. p. 107). Dycus told Officer Cooper that "there was nothing in her vehicle, [and] that her and her mom had smoked marijuana about an hour before." (Tr. p. 107). At that point, Officer Cooper radioed for backup, requesting for the help of Indianapolis Metropolitan Police Officer Christopher Winter (Officer Winter), who is certified to conduct a drug recognition evaluation (DRE). Upon arriving, Officer Winter asked Dycus to perform a field sobriety test. While conducting the field sobriety test, Officer Winter smelled "a strong odor of marijuana coming from her when she spoke. It was so strong that [the officers] thought that she had some hidden on her somewhere." (Tr. p. 118). Dycus passed the horizontal gaze nystagmus test, which indicated that she was not under the influence of alcohol. She failed the walk-and-turn test and the one-legged stand test. Dycus consented to a certified breath test, which returned negative for the presence of alcohol. However, while performing the breath test at the IMPD Northwest office, Officer Winter observed a green, leafy substance in Dycus' mouth and "a green streak going down her tongue." (Tr. p. 130).

          [¶7] Officer Winter advised Dycus that the signs that she was impaired were not consistent with the negative alcohol results and asked Dycus if she would submit to a DRE. A DRE is a standardized, 12-step program designed to determine whether an individual is impaired by the use of drugs based on the totality of the evaluation. Pursuant to the DRE guidelines, it is possible to infer the type of substance that caused the impairment by using a seven-category[1]evaluation matrix. During the exam, which also includes three behavioral tests, Officer Winter took Dycus' temperature with an oral thermometer, he measured her blood pressure, and examined her arms. He illuminated her nasal cavities with a flashlight to look inside. He ordered Dycus to open her mouth and examined the inside. Officer Winter measured Dycus' pupil size in three different lighting conditions. Some parts of the DRE took place in a pitch black room-in this case, a closet at IMPD's northwest office. Officer Winter entered all the observations of Dycus' DRE into a "drug symptom matrix." See State's Exh. 8). At the conclusion of the thirty-minute DRE, Officer Winter concluded that Dycus was under the influence of marijuana.

         [¶8] Dycus consented to a blood draw and was transported to Eskenazi hospital. A nurse at Eskenazi drew two vials of blood from Dycus and handed the blood samples to Officer Winter, who sealed them with evidence tape, signed his name, and transported the blood samples to the IMPD property room. According to the Indiana State Department of Toxicology Analysis Request Form, the blood samples were then received by Indianapolis Metropolitan Police Officer Michael Duke, who transported the vials to the Indiana State Department of Toxicology (ISDT) for testing. ISTD assigned an identifying number to the blood samples and the vials were subsequently shipped via FedEx to National Medical Services (NMS).

         [¶9] NMS is an accredited laboratory, located in Pennsylvania. ISDT outsources some of its casework to NMS, including blood tests for marijuana. NMS lab support specialist Samantha Hill (Hill) prepared the blood sample for testing, and NMS forensic scientist Craig Leopold analyzed the sample, which tested positive for Delta-9 THC in the amount of 3.0 ng/ml. Delta-9 THC is an active metabolite of marijuana with psychoactive ...

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